Does the General Medical Council's 2020 guidance on consent advance on its 2008 guidance?

Consent for Medical Treatment: What is 'Reasonable'?

The General Medical Council (GMC) instructs doctors to act 'reasonably' in obtaining consent from patients. However, the GMC does not explain what it means to be reasonable: it is left to doctors to figure out the substance of this instruction. The GMC relies on the Supreme Court's judgment in Montgomery v Lanarkshire Health Board; and it can be assumed that the judges' idea of reasonability is adopted. The aim of this paper is to flesh out this idea of reasonability. This idea is commonly personified as the audience that has to be satisfied by the doctor's justification for offering, or withholding, certain treatments and related information. In case law, this audience shifted from a reasonable doctor to a 'reasonable person in the patient's position'; and Montgomery expands the audience to include 'particular' patients, too. Senior judges have clarified that the reasonable person is a normative ideal, and not a sociological construct; but they do not set out the characteristics of this ideal. John Rawls has conceived the reasonable person-ideal as one that pursues fair terms of co-operation with other members of society. An alternative ideal can be inferred from the feminist ethic of care. However, the reasonable patient from Montgomery does not align with either theoretical ideal; but, instead, is an entirely rational being. Such a conception conflicts with both real-life constraints on rationality and the doctor's duty to care for the patient, and it challenges the practice of medicine.

A descriptive assessment of the informed consent document used by congenital cardiac surgery centres

BACKGROUND

Informed consent for surgery is a complex process particularly in paediatrics. Complexity increases with procedures such as CHD surgery. Regulatory agencies outline informed consent contents for surgery. We assessed and described CHD surgical informed consent contents through survey dissemination to paediatric CHD centres across United States of America.

METHODS

Publicly available email addresses for 125 paediatric cardiac clinicians at 70 CHD surgical centres were obtained. Nine-item de-identified survey assessing adherence to The Joint Commission informed consent standards was created and distributed via RedCap® 14 March, 2023. A follow-up email was sent 29 March, 2023. Survey link was closed 18 April, 2023.

RESULTS

Thirty-seven surveys were completed. Results showed informed consent documents were available in both paper (25, 68%) and electronic (3, 8%) format. When both (9, 24%) formats were available, decision on which format to use was based on centre protocols (1, 11%), clinician personal preference (3, 33%), procedure being performed (1, 11%), or other (4, 45%). Five (13%) centres' informed consent documents were available only in English, with 32 (87%) centres also having a Spanish version. Review of informed consent documents demonstrated missing The Joint Commission elements including procedure specific risks, benefits, treatment alternatives, and expected outcomes.

CONCLUSIONS

Informed consent for CHD surgery is a complex process with multiple factors involved. Majority of paediatric CHD surgical centres in the United States of America used a generic informed consent document which did not uniformly contain The Joint Commission specified information nor reflect time spent in discussion with families. Further research is needed on parental comprehension during the informed consent process.

The Supreme Court's decision in McCulloch v Forth Valley Health Board: Does it condone healthcare injustice?

The UK Supreme Court's recent judgement in McCulloch v Forth Valley Health Board clarifies the standard for the identification of 'reasonable' alternative medical treatments. The required standard is that of a reasonable doctor: treatments that would be accepted as proper by a responsible body of medical opinion. Accordingly, the assessment of consent involves a two-stage test: first, a 'reasonable doctor' test for identifying alternative treatments; followed by a 'reasonable person in the patient's position' test for identifying the material risks of these reasonable alternative treatments. The separation of consent into two stages is consistent with not only a certain conception of freedom but also a nuanced construct of respect for autonomy that has a normative base. Furthermore, reliance on a reasonable doctor in the first stage is in keeping with a sociological account of medical professionalism, which posits that only doctors, and none others, can determine what is a proper treatment. Yet, reliance on a reasonable doctor permits a plurality of standards for reasonableness, because differences in opinion among doctors are pervasive. The reasons for some differences might be acceptable as unavoidable imperfections in medical decision-making to a reasonable person. But reasons for other differences might be objectionable; and the resultant inequalities in medical treatments would be considered unfair. One solution is to make the plurality of reasonable alternatives available to the patient, but this would introduce practical uncertainty and it is rejected by the Court. The Court's approach may be pragmatic; however, it seems to allow avoidable injustice in healthcare.